Thursday, August 09, 2012

The #CPC fights back in the #robocalls litigation

News that the Conservatives have filed some evidence in the robocalls litigation: "Affidavit rebuts voter suppression allegations against Conservatives." As the headline suggests, the affidavit submits the Conservative side's evidence on the robocalls allegations. Specifically, it counters the evidence of an RMG call centre worker which is relied upon by the plaintiffs in these cases, among other evidence.

But at this stage, these affidavits are not necessarily the truth of the matter but evidence submitted on behalf of a litigant, under oath, and subject to cross-examinations. Those cross-examinations will get at the truth of the matter. And those cross-examinations, as the report notes, are to take place this month.

Note that the main affidavit referenced in the report is filed by "Andrew Langhorne, chief operating officer of Responsive Marketing Group, the Conservative party’s main voter contact firm." Steven Shrybman, lawyer for the Council of Canadians, makes this point:

“Even though Langhorne describes the critical role the Conservative Party of Canada plays in creating the scripts that were read to voters and deciding who’s going to be called, there’s no one that’s come forward from the Conservative Party of Canada to explain what they were doing or not doing in relation to contacting non-supporters, which is the key issue at the centre of this case.”

That is an interesting point but RMG, by all accounts, is the main fundraising arm for the Conservative party. It's a good thing to have the opportunity to cross-examine its chief operating officer under oath. It might lead to some interesting angles being developed on RMG's relationship with the Conservative party alongside the exploration of all the issues raised in this litigation, like the scripts, the extent of the calls, the oversight by the party, etc. Shining a light on the black box that is RMG may be a very good thing, so I hope this gets to proceed fully.

The jeopardy in the case proceeding fully is the motion mentioned in the report from the Conservatives who have apparently filed security for costs motions. It's been a while for me on arguing one of those so I'm not sure what the latest case law is. Impecunious plaintiffs do have to meet a test on these motions but there is definitely a public interest component here that the judge will be well aware of. This is also a unique proceeding under the Elections Act that doesn't happen every day so it is not your run of the mill commercial civil litigation. Also note that the Elections Act requires $1,000 in security for costs by an applicant, so the burden is on the Conservatives to justify a larger contribution.

It is totally unsurprising that the wealthy Conservative party, like your average corporate behemoth, would attempt to use all the litigation muscle it can, not just on the aforementioned motion but in all the procedural tactics it is mustering in this case. It is telling us something about how serious the case is and how seriously it is viewed by the Conservative party.